195 F.

2d 120

CONRY
v.
BALTIMORE & O. R. CO.
No. 10450.

United States Court of Appeals Third Circuit.

Argued October 4, 1951.
Decided March 5, 1952.

COPYRIGHT MATERIAL OMITTED Vincent M. Casey, Pittsburgh, Pa.

(Margiotti & Casey, Pittsburgh, Pa., on the brief), for appellant.
Thomas Park Shearer, Pittsburgh, Pa. (A. M. Oliver, Pittsburgh, Pa., on
the brief), for appellee.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.

Plaintiff then about twenty-one years old was badly hurt as the result of being
struck and run over by one of the defendant's freight trains. The point of impact
was approximately 75 to 100 feet west of the 9th Street crossing of defendant's
tracks in the Borough of Braddock, Pennsylvania. Just prior to being hit he was
lying unconscious within the lines of the track, with his right leg over the south
rail. In the negligence action that followed, the jury rendered a verdict in his
favor in the sum of $20,000. Motions by defendant railroad for judgment
notwithstanding the verdict and for a new trial were denied by the trial judge1
and the railroad appeals. The case is in the federal court because of the diverse
citizenship of the parties. Pennsylvania law is therefore applicable to the merits
of the controversy.

There was testimony that on August 8, 1947 about 12:30 A.M. while plaintiff
was crossing defendant's tracks at the public intersection at 9th Street he
stepped into a hole near the first rail of the third set of tracks. This caused him
to fall forward and strike his head. Immediately thereafter he was in a dazed
condition with the right side of his head covered with blood. He states, "I

started to raise up to a sitting position. That's all I remember." At approximately

2:13 A.M. that same morning an object which later proved to be appellee was
seen on appellant's tracks approximately 75 to 100 feet west of the 9th Street
crossing. Conry's thought is that after his fall he had wandered along the
railroad tracks west of 9th Street and fallen across them at the point where he
was observed. Lannis, the head brakeman on the above mentioned train which
was moving east stated that he saw ahead of the train at a distance of from 240
to 250 feet what he thought at first was a pile of white sand. Continuing to
watch it as the train drew closer, he testified that at 80 feet he "* * saw that it
was the body of a person." He signalled for an emergency stop but by the time
the train was at a standstill the engine tender which was leading had passed
over appellee who suffered a traumatic amputation of his right leg, a fractured
skull and other injuries. The train moved approximately 150 feet from where
Lannis identified Conry as a human being before coming to a complete halt.
The speed of the train was estimated variously from six to twelve miles an
hour. The railroad employees testified that the stop was a very good one
considering the circumstances. According to appellee, he did not regain
consciousness from the time he struck his head at the crossing until later the
same day or the following day at the Braddock General Hospital. Witnesses for
the plaintiff testified to the existence of the particular hole in the crossing which
caused plaintiff's fall for at least six months prior to the accident, and on the
date of the accident.
3

At the trial two separate avenues for recovery were followed by the plaintiff.
He contended that the negligence of the railroad in maintaining the 9th Street
crossing caused him to there fall and that as a result of the fall, in a dazed
condition, he wandered down defendant's tracks where he was later struck and
run over by the tender. Under that theory all of Conry's injuries were the direct
consequence of his fall at the crossing. Quite independent of that fall Conry
also asserted that the later striking of him by the tender was a distinct act of
wanton negligence by the railroad and therefore, even though it were assumed
he was a trespasser at that time, he could recover for the injuries he received in
that second accident.

The trial judge in his charge did not differentiate between the two negligence
propositions. He instructed the jury that in order for the plaintiff to obtain a
verdict he had to prove not only negligence of the defendant at the crossing but
also that the defendant was guilty of wanton negligence in striking him with the
tender.2 In other words, adopting plaintiff's version of the facts including
breach of a legal duty at the crossing, the court in effect ruled that the railroad
still owed him no higher duty than it owed to a trespasser. This placed too high
a burden on the plaintiff under his description of the occurrence. Whether the

original alleged negligence of the defendant at the crossing was the proximate
cause of his being struck and run over by defendant's train3 should have been a
jury question subject to proof of the railroad's duty to maintain the crossing in
reasonably safe condition as below noted.4 But we must take this case as it
comes to us and as it was actually presented to the jury. After certain routine
instructions the jury was told: "* * * if the plaintiff was lying on the railroad
tracks of the defendant through the negligence of the defendant in the first
instance at the crossing, and the servants, agents or employees of the defendant
operating the train could or should have seen the plaintiff, and that one or more
of said servants, agents or employees, did see him, with sufficient opportunity to
act in the light of such observation and stop the train, then the plaintiff would
be entitled to recover. In short, the plaintiff must prove by the fair
preponderance or weight of the evidence not only that the defendant was
negligent in its maintenance of the crossing, but that the trainmen had actual
knowledge of the presence of the plaintiff on the tracks of the defendant in time
to stop the train and thereby have averted the accident by the exercise of
reasonable care and caution. If the defendant was negligent in its maintenance
of the crossing which caused the plaintiff to be injured in the first instance, and
wander some distance from the crossing and be in a lying position thereon, it
must appear not only that the defendant's employees could have or should have
seen the plaintiff lying on the right of way some distance from the crossing, but
that they did see him at a time and with sufficient opportunity to act in the light
of such observation and have stopped the train and averted the accident."
(Emphasis supplied.)
5

The theory of the defense was that plaintiff was a trespasser to whom the
railroad owed no higher duty than to avoid wantonly injuring him. The law
which the trial judge felt was applicable to this phase of the suit was also gone
into. It is too lengthy to repeat verbatim, but the heart of it follows:

"So, to review, where the plaintiff is a trespasser, there is no duty on the part of
the defendant to be observant of persons lying on the tracks of the defendant,
where the defendant does not know of, or is not required to anticipate the
presence of the plaintiff on the defendant's tracks. If the plaintiff is a trespasser,
it must appear not only that the defendant could have or should have seen the
plaintiff lying on the tracks of the defendant, but that the defendant did see the
plaintiff at a time and with sufficient opportunity to act in the light of such
observation and have stopped the train and averted the accident.

"In other words, if the plaintiff was a trespasser, the doctrine of wanton
negligence applies, for the defendant can only be held responsible for wanton
negligence if the plaintiff is a trespasser. Wanton negligence as distinguished

from ordinary negligence is characterized by a realization on the part of the

tort-feasor or the person at fault, or at least what would cause such realization
to a reasonable man, of the probability of injury to another, and by a reckless
disregard nevertheless of the consequences.
8

"It is not wanton negligence to fail to use care to discover the presence of an
unanticipated trespasser on the defendant's right-of-way, or railroad track, but it
is wanton negligence to fail to use ordinary and reasonable care to avoid injury
to a trespasser after his presence has been ascertained." (Emphasis supplied.)

Under the above instructions plaintiff could not succeed unless the jury
concluded that the defendant's train crew saw him "* * * at a time and with
sufficient opportunity to act in the light of such observation and have stopped
the train and averted the accident." If the jury made that finding alone, plaintiff
was entitled to a verdict on defendant's theory that he was a trespasser since the
legal equivalent of that finding is that defendant was guilty of wanton
negligence toward him, viewing him as a trespasser. For plaintiff to succeed
under his own version of the accident, the jury had to make the identical
finding, above quoted, in addition to having been previously satisfied that
plaintiff's hazardous position on the tracks was due to defendant's negligence in
the first instance at the crossing. The jury's general verdict must be construed at
the very least as a determination that defendant was guilty of wanton negligence
as that term was defined by the trial judge. Without that finding, no verdict for
plaintiff under either ground of recovery was sanctioned by the charge. With it,
plaintiff was entitled to a verdict regardless of defendant's asserted negligence
at the crossing.

10

Our appellate function in reviewing this aspect of the trial would be exhausted
if we could but state that there was sufficient evidence before the jury to
support such a finding. Though we have given plaintiff every reasonable
inference to be drawn from the evidence and have considered it in the light
most favorable to him, we cannot say that the jury had before it evidence to
support that decisive finding. There must be a new trial.

11

There were three employees of the defendant riding the freight train, which was
composed of the locomotive, an engine tender, caboose and 22 freight cars
partly loaded, partly empty. The only one of the train crew who saw the
plaintiff lying on the tracks was the head brakeman, Lannis, whose testimony
has already been outlined at length. There was no evidence that the train could
have been stopped within the 80 feet by the exercise of reasonable care, and the
accident thereby averted. Nor has plaintiff so contended before this court.
Neither was there evidence that the plaintiff was seen beyond the 80 feet and

within a distance in which the train could have been safely stopped. Plaintiff
first argues that "The jury was justified in believing that a reasonable man in
the same position as the brakeman would have noticed the white object at 800
feet [the distance the headlight was focused ahead], got in a better position to
stop the train as he approached closer and closer, and finally recognized the fact
that it was a man long before Lannis had." (Emphasis supplied.) Plaintiff here
builds on a faulty premise, the same one rejected by this court in Green v.
Reading Co., 3 Cir., 183 F.2d 716, where the Pennsylvania authorities are
discussed. Under the charge the question confronting the jury was not whether
defendant's employees had failed to use care to discover the plaintiff's presence
but whether the train crew saw the plaintiff in time to stop and avert the
accident by the exercise of reasonable care.
12

The balance of plaintiff's argument to support the verdict should have been
presented to the trial court for submission to the jury in the charge and not
reserved for appeal. We are told in effect, and agree, that the defendant's duty
toward a trespasser to avoid wantonly injuring him is stated more broadly in the
Pennsylvania cases than the version presented to the jury in the charge. We are
referred to the Restatement of Torts, Section 336 and Comment (b)5 which was
cited with approval in Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136,
141, 10 A.2d 576. Obviously the feature of it most applicable to the present
facts is not the rule that the defendant's duty to exercise reasonable care for a
trespasser's safety arises when he knows that another is trespassing as the jury
was repeatedly told. It is instead the broader rule that such a duty arises also
when the defendant from facts known to him should know or believe that
another is or may be trespassing. This court has heretofore acknowledged
Section 336 to be expressive of the Pennsylvania law, Green v. Reading Co.,
supra. Plaintiff is addressing his argument to the alternate principle when he
says, as he does, "Were they [the jury] not justified in believing that under the
circumstances Lannis must have known it was a man before getting within 80
feet of him? And could they not have decided that Lannis should have realized
the probability of its being a man and taken appropriate action in time to avert
this tragedy?" Since the jury did not have before it the interpretation of the rule
from Section 336 of the Restatement, its decision for the plaintiff cannot be
construed as a finding that from the facts disclosed to it the defendant should
have known or believed that the plaintiff was or might have been trespassing.

13

As this case must be sent back for a retrial it should be noted that appellee's
above mentioned argument under the rule as set out in Section 336 of the
Restatement may become most pertinent depending, of course, upon the
evidence and the charge of the court. The same general thought applies to
opinions of the type of Cheslock v. Pittsburgh Railways Co., 363 Pa. 157, 163,

69 A.2d 108, dealing with constructive notice to the defendant by virtue of

constant trespassing [see Section 334, Restatement of Torts]. These, while of no
help at this time since no evidence of that sort was introduced, may well
become of vital importance at a retrial. It should also be emphasized that
entirely apart from plaintiff-appellee's theory of defendant-appellant's wanton
negligence to him as a trespasser, he claimed that his injuries, including those
incurred when he was struck and run over by the tender below the crossing,
resulted directly from his fall at the 9th Street public crossing which was
caused by the negligent maintenance of that crossing by appellant who was
responsible in whole or part for such maintenance. We reiterate that under
Pennsylvania law in order for that cause of action to go to the jury there must
be affirmative proof of the railroad's responsibility to maintain the crossing. See
Reed v. Allegheny County, supra.
14

Appellant also argues that the trial court erred in allowing the jury to pass on
the question of mental suffering of plaintiff due to any personal deformity,
mutilation or disfigurement arising from the accidents involved. It is contended
that there was no direct evidence of this and further that it had not been
pleaded.

15

The complaint alleged that Conry was "* * * seriously and permanently injured
and disabled in the following particulars: (a) his right leg was severed from his
body. (b) he received abrasions and contusions of the face and head. (c) he
suffered a fracture of the skull and a concussion of the brain." It is further stated
that he " * * * has and will suffer great pain and inconvenience." And that "He
has and will be obliged to purchase artificial limbs." Dr. George Long testified
that Conry had a complete loss of his right leg above the knee joint; that he
now has an artificial leg; that he cannot move around with it as well as he could
with a natural leg; that he is 60% disabled for mill work. Dr. U. A. Carpenter,
also a witness at the trial which was held October 16, 1950, pointed out an
existing scar on Conry's forehead the dimensions of which are not in the record.
Conry said he had to go around on crutches for about five months. After that he
obtained an artificial leg but had considerable trouble in properly adjusting it.
He stated "I had to get three new tops; that is my stump started getting bigger
instead of shrinking." He also told of going to the Braddock Unemployment
Office to ascertain if there was any work for a handicapped person.

16

Under the language of the complaint and permissible inferences from the above
testimony and having in mind the grievous injury and relatively small amount
of the verdict the error, if any, was a minor one. If this item of damage is to be
persevered with at the new trial it would be well to amend the complaint
accordingly and to offer whatever proof there may be, if any, in that

connection.
17

The final point that the verdict is against the evidence and the weight of the
evidence has already been covered as much as need be.

18

The judgment of the district court will be reversed and the case remanded for a
new trial on the merits.

Notes:
1

D.C., 95 F.Supp. 846

As the district judge said in his opinion denying a new trial, D.C., 95 F. Supp.
846, 851: "Since under the testimony the jury could justifiably find the
defendant was negligent in the maintenance of said crossing, and that as a result
thereof the plaintiff became in an unconscious or dazed condition and placed on
the tracks of the defendant some one hundred feet west of the crossing, it
became obligatory for the Court to charge on wanton negligence."

Conry's testimony is positive that he sustained some injury, primarily to his

head, when he fell at the crossing. His recovery for that injury was in no way
dependent on the later tender accident. There should have been a special
instruction taking care of this branch of the trial

In charging the jury regarding the fall at the crossing the judge did say that the
railroad had the duty of maintaining the crossing in reasonably safe condition.
Under Pennsylvania law it is necessary that there be proof of that duty and there
was no such proof. Reed v. Allegheny County, 330 Pa. 300, 199 A. 187. The
charge in that respect was, therefore, error. Under ordinary circumstances we
would be forced to send this action back for a new trial in order that proof of
the duty, if any existed, might be produced. The error is of no present
importance since the over all test given to the jury by which to appraise the
negligence of the railroad on the complete cause of action was whether there
was proof that any member of the train crew saw Conry in time to avoid injury
to him by the exercise of reasonable care
On this appeal it is contended for the first time that appellant waived its right to
require proof of its duty to maintain the crossing. The question of the necessity
of that proof was argued on the merits at the trial and decided by the trial
judge. In that situation the railroad cannot fairly be said to have waived the
necessity for such proof.

Restatement of Torts, Section 336 reads as follows:

5
"Activities Dangerous To Known Trespassers.
"A possessor of land who knows that another is trespassing thereon or from
facts known to him should know or believe that another is or may be doing so,
is subject to liability for bodily harm thereafter caused to the trespasser by the
possessor's failure to carry on his activities upon the land with reasonable care
for the trespasser's safety.
"Comment:
"a. * * *
"b. Precautions when possessor's activities highly dangerous. If the activity
which a possessor of land carries on upon it is one which, even though
carelessly conducted, is likely to cause only some harm which, though
substantial, is less than death or serious bodily harm, the possessor is not
required to exercise care for a trespasser's safety unless he knows of his
presence at some point made dangerous by the activity or unless he sees an
object or hears a sound which makes him regard the presence of a trespasser as
substantially certain or at the least highly probable. On the other hand, the
gravity of the danger threatened by an activity which, unless carefully carried
on, is likely to cause death or serious bodily harm, requires the possessor to
exercise reasonable care not only when he knows that a trespasser is at some
point made dangerous by it or is reasonably certain or regards it as highly
probable that he is at such a point, but also when he sees an object or hears a
sound which causes him to realize that there is a substantial chance that the
trespasser may be at such a point. This is in accordance with the tendency of
the law not only to require a greater amount of care where life and limb are at
stake, than where only some minor harm is likely to occur, but also to extend
the duty of protection to persons to whom no duty would be owing if a less
serious harm were threatened.
"Illustration:
"1. The engineer of the X & Y Railroad Company sees lying upon the track a
pile of clothing such as would give a reasonable man cause to suspect that it
might contain a human being. Under these circumstances the engineer is not
entitled to assume that it is not a human being but is required to keep the engine
under control until he is certain that it is not such."